The Potential Nomination of Merrick Garland

Posted Mon, April 26th, 2010 4:30 pm by Tom Goldstein

Background

After graduating with honors from Harvard University and Harvard Law School, D.C. Circuit Judge Merrick Garland clerked for Judge Henry Friendly on the Second Circuit and then for Justice William Brennan.

Garland has spent most of his career in public service, much like Justice Samuel Alito. Both served as Assistant United States Attorneys and as high-level aides to Attorneys General. If nominated and confirmed to the Court, Garland would be the third sitting justice with prosecutorial experience (joining Justices Alito and Sotomayor).

But while Alito remained in government, Garland's career also included several years in private practice at Arnold & Porter, where he was named a partner in 1985. During this period, Garland also taught antitrust at Harvard Law School in 1986 and published articles "“ both on antitrust law "“ in the Harvard Law Review and Yale Law Journal.

In 1993, Garland was appointed as Deputy Assistant Attorney General in the Criminal Division of the Department of Justice. In 1994, Garland became the Principal Associate Deputy Attorney General, with responsibilities that included the supervision of the Oklahoma City bombing case and the case against the Unabomber.

Nomination To D.C. Circuit

In 1995, President Clinton nominated Garland for an opening on the D.C. Circuit, and he received a hearing in December of that year. During that confirmation hearing, Garland was asked about "judicial activism." He answered that "[f]ederal judges do not have roving commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it "“ not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinion on the issues of the day."

Garland's nomination was stalled by Senate Republicans, not because of opposition to him but because of a dispute over whether to fill the twelfth seat on that court at all. Clinton re-nominated Garland in January 1997, and he was confirmed approximately three months later by a vote of 76-23. But once again, opposition did not relate to Garland's own qualifications. To the contrary, Senator Orrin Hatch called him "not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration" (a sentiment Hatch repeated in 2003). Garland also had the support of senior administration officials from the Reagan Justice Department, as well as that of Judge Laurence Silberman, who was appointed to the D.C. Circuit by Ronald Reagan.

Overview Regarding Confirmation And Impact Of Garland's Appointment

Judge Garland's record demonstrates that he is essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements.

Judge Garland is also the "short list" candidate to replace Justice Stevens who is least likely to prompt a polarizing confirmation fight. He has broad support on both sides of the aisle, and he has few ideologically controversial rulings. Conservative commentators (see here, here, and here) have expressed support for a potential Garland nomination.

Of the three principal candidates "“ the other two being Solicitor General Elena Kagan and Judge Diane Wood "“ Judge Garland would also likely have the most immediate influence on the Court. He is well known to the Justices and is likely the most respected by them collectively, particularly the more conservative Justices. The fact that Judge Garland is not only extremely intelligent and respectful but exceptionally careful and quite centrist would mean that his views would have particular salience with, among others, Justices Kennedy and Alito.

To the extent that ideology plays a role in the nomination "“ and it obviously plays a material role "“ the other side of the coin of the factors that would in part drive Judge Garland's likely influence is the fact that, on questions on which the three principal candidates would disagree, he would generally be the least liberal. Strictly in terms of the change in the votes of the liberal Justices Stevens and his successor, Judge Garland would be the most different. Certainly, to the extent that the President's goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.

The point is not that Judge Garland is conservative. None of the candidates under serious consideration is. Rather, there are gradations between the views of the three, and there are questions on which they would disagree. On a number of issues, particularly those related to criminal law, Judge Garland is the least likely to adopt a liberal position. There are, however, some potential counter-examples involving the First Amendment and environmental law.

Review By The Supreme Court

For a long-tenured judge on a prominent court of appeals, Judge Garland has participated in few cases that resulted in Supreme Court review. The Supreme Court has not granted cert. in any case in which he wrote the court of appeals' opinion. Of the seven cases reviewed by the Supreme Court in which he has stated (or strongly implied) a position, the Justices agreed with him in four.

The most significant of these rulings was the al Odah case, in which a panel that included Judge Garland held early in the line of detainee cases that federal district courts lack habeas corpus jurisdiction over the Guantanamo detainees' claims. The Supreme Court subsequently reversed in a six-to-three ruling, with the majority opinion for five Justices written by Justice Stevens. That said, contrary to the views of some, it is difficult to criticize Judge Garland or infer too much from his vote in the case: there is a significant argument that the panel's opinion was compelled by then-extant Supreme Court precedent, as illustrated by the fact that no member of the D.C. Circuit called for en banc review of the panel's ruling. al Odah v. United States, 321 F.3d 1134 (2003) (joining panel opinion by Randolph, J., along with Williams, J., holding that federal district court lacked habeas corpus jurisdiction over Guantanamo detainees under existing Supreme Court precedent), rehearing en banc denied without dissent (June 2, 2003), rev'd sub nom. Rasul v. Bush, 540 U.S. 1175 (2004).

Judge Garland was also part of a unanimous panel that upheld a Park Service regulation; the Supreme Court subsequently vacated the ruling on the ground that the suit was not ripe. Amfac Resorts v. Department of Interior, 282 F.3d 818 (2002), vacated sub nom. National Park Hosp. Ass'n v. Department of Interior, 538 U.S. 803 (2003).

In another case, Judge Garland was a member of a panel which held that the FCC's revocation of a license was subject to the restrictions of the Bankruptcy Code. The Supreme Court affirmed. NextWave Personal Comms. v. FCC, 253 F.3d 130 (2001), aff'd, 537 U.S. 293 (2003).

Garland also notably voted in favor of en banc review of the D.C. Circuit's decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed. Garland did not take a formal position on the merits of the case. But even if he had concluded that the statute was constitutional, that view of the case would have conformed to the widespread view that, under existing Supreme Court precedent, the Second Amendment did not confer a right to bear arms unconnected to service in a militia. Parker v. District of Columbia, 478 F.3d 370 (2007) (see denial of rehearing en banc).

Judge Garland was one of four judges who dissented from the denial of rehearing en banc in a case in which the panel had limited the availability of punitive damages under the Americans With Disabilities Act. The Supreme Court subsequently reversed. Kolstad v. Am. Dental Ass'n, 139 F.3d 598 (1998) (en banc) (Tatel, J., dissenting) (along with Edwards, C.J., and Wald and Rogers, JJ., joining opinion arguing that intentional sex discrimination is sufficient to justify punitive damage award), rev'd, 527 U.S. 526 (1999).

Because the D.C. Circuit's caseload is dominated by regulatory challenges, few of the cases in which Judge Garland participated involve hot-button social issues like abortion or the death penalty. I have attempted to review the principal areas of law in which he has decided a significant number of cases that would likely be most relevant to his potential appointment.

Criminal Law

The most significant area of the law in which Judge Garland's views obviously differ materially from those of Justice Stevens is criminal law. Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions. I identified only eight such published rulings, which should capture all the significant cases. Judge Garland did not author any of the opinions. United States v. Johnson, 592 F.3d 164 (2010) (Brady violation); United States v. Walker, 545 F.3d 1081 (2008) (firearms charge); United States v. Askew, 529 F.3d 1119 (2008) (en banc) (search); United States v. Ayeni, 374 F.3d 1313 (2004) (fraud and theft conviction); United States v. Whitmore, 359 F.3d 609 (2004) (denial of right to cross-examine witness); United States v. Gilliam, 167 F.3d 628 (1999) (firearms, but ruling had no effect on defendant's sentence); United States v. Lampkin, 159 F.3d 607 (1998) (unlawfully employing a minor and drug offense); United States v. Maddox, 156 F.3d 1280 (1998) (firearms). The only possible exception "“ that is, a case in which Judge Garland wrote for the panel in reversing a criminal conviction "“ is United States v. Clark, 184 F.3d 858, 871 (1999) (per Garland, J.), which reversed a firearms case, but I do not find it significant; as Judge Garland explained: "Although the government did not respond to this argument, we note that it has conceded the point in at least three other cases."

In seven other cases, he voted to reverse the defendant's sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand. In re Sealed Case, 573 F.3d 844 (2009) (per Tatel, J.; Henderson, J., dissenting); United States v. Branham, 515 F.3d 1268 (2008) (per Garland, J.) (sentence); United States v. Henry, 472 F.3d 910 (2007) (sentence); United States v. Dorcely, 454 F.3d 366 (2006) (restitution); United States v. McCoy, 313 F.3d 561 (2002) (en banc) (joining majority opinion permitting defendant to raise new sentencing issue on remand in certain circumstances; Henderson, J., dissenting, joined by Ginsburg, C.J., and Sentelle, J.); United States v. Thomas, 361 F.3d 653 (2004) (the evidence did not support the conclusion that the fun that the defendant possessed was stolen); United States v. Williams, 216 F.3d 1099 (2000) (the trial court drew unreasonable influences about when the defendant joined a conspiracy).

Most striking, in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. Because disagreement among panel members on the D.C. Circuit is relatively rare, this substantial body of cases is noteworthy. United States v. Andrews, 532 F.3d 900 (2008) (per Garland, J.) (upholding criminal conviction; Rogers, J., concurs arguing that the case should be resolved on narrower ground); United States v. Askew, 529 F.3d 1119 (2008) (en banc) (not joining part of en banc opinion of Edwards, J., joined by Rogers, Tatel, and Brown, JJ., finding Fourth Amendment violation); United States v. Powell, 483 F.3d 836 (2007) (en banc) (joining majority opinion denying Fourth Amendment motion to suppress; Rogers, J., dissents); Valdes v. United States, 475 F.3d 1319 (2007) (en banc) (Garland, J., dissenting) (joined by four other judges, dissenting from majority opinion joined by Edwards, Tatel, and Rogers, JJ., invalidating conviction for making payment for "official act"); United States v. Riley, 376 F.3d 160 (2004) (per Garland, J.) (joined by Tatel, J., reversing downward departure; Rogers, J., dissents); United States v. Linares, 367 F.3d 941 (2004) (Garland, J., concurring) (declining to join part of opinion by Tatel, J. (joined by Sentelle, J.), concluding that evidence should have been excluded; judge Garland concludes it is unnecessary to reach the issue given the court's conclusion that any error was harmless); United States v. Brown, 334 F.3d 1161 (2003) (per Garland, J.) (rejecting claim that evidence should be suppressed; Rogers, J., dissents); United States v. Watson, 171 F.3d 695 (1999) (Garland, J., dissenting) (dissenting from opinion of Rogers, J., joined by Edwards, J., holding that conviction must be reversed based on prosecutor's misstatement of witness testimony in closing argument); United States v. Spinner, 152 F.3d 950 (1998) (Garland, J., dissenting) (dissenting from opinion of Sentelle, J., joined by Edwards, J., reversing conviction on one count for insufficient evidence and another count on the ground that prosecutors engaged in inappropriate cross-examination); United States v. Crowder, 14 F.3d 1202 (1998) (en banc) (joining opinion holding that defendant's offer to stipulate to element of offense does not preclude admission of bad acts evidence, over dissent of Tatel, J., joined by Edwards, C.J., and Wald and Silberman, JJ.).

In another case, Judge Garland dissented from a panel ruling by two of the court's more conservative judges in favor of a criminal defendant. United States v. Wilson, 240 F.3d 39 (2001) (Garland, J., dissenting) (dissenting from opinion of Williams, J., joined by Silberman, S.J., reversing sentencing enhancement). He also joined a majority opinion over a dissent by a conservative panel member in favor of a defendant. United States v. Williams, 212 F.3d 1305 (2000) (per Henderson, J., finding that error in admitting officer's testimony was harmless; over dissent of Silberman, J.). These isolated two examples are similar to what one would expect to see on the Supreme Court, where Justices on the left and right do not line up reflexively for and against criminal defendants.

There is one other illuminating comparison. I noted above that Judge Garland had joined approximately a dozen published rulings reversing or vacating a defendant's conviction or sentence. In that same period, Judge Tatel joined such decisions (or dissented from the refusal to grant the defendant relief) approximately twenty-five times.

Unlike many other judges, Judge Garland's position on criminal law issues is not reflective of a broader ideology. One might expect that a judge with such a record on criminal law questions would be generally quite conservative across the board. That does not appear to be true, however.

Detainees and Constitutional Claims

Another noteworthy area of law in which Judge Garland has participated is cases involving the detainees at Guantanamo Bay. He was a member of the al Odah panel discussed above. al Odah v. United States, 321 F.3d 1134 (2003) (joining panel opinion by Randolph, J., along with Williams, J., holding that federal district court lacked habeas corpus jurisdiction over Guantanamo detainees under existing Supreme Court precedent), rehearing en banc denied without dissent (June 2, 2003), rev'd sub nom. Rasul v. Bush, 540 U.S. 1175 (2004) (6-3 vote, per Stevens, J.).

On the other hand, Judge Garland did quite consciously stake out a position separate from the more liberal members of the D.C. Circuit in one of the detainee cases, in a vote that arguably most directly reflects his oft-stated preference for deciding cases on narrow grounds. Bismullah v. Gates, 514 F.3d 1291 (2008) (Garland, J., concurring) (concluding that en banc review of detainee-favoring ruling should be denied because the Supreme Court had indicated that the case should be resolved quickly; not joining concurrence by Ginsburg, Rogers, Tatel, and Griffith, JJ., that panel opinion was correct on the merits).

In various other contexts, Judge Garland has in a few cases rejected assertions of constitutional rights, disagreeing with his more-liberal colleagues. I am not aware of counterexamples in which he has staked out a more liberal position. Again, the point is not that Judge Garland is conservative, but instead that he is more to the center than to the left. Abigail Alliance v. von Eschenbach, 495 F.3d 695 (2007) (en banc) (joining majority opinion rejecting claim of constitutional right to access to unapproved drugs; Rogers, J., and Ginsburg, C.J., dissent); Ruggiero v. FCC, 417 F.3d 239 (2003) (en banc) (joining en banc opinion upholding restrictions on licenses for low-power radio stations against First Amendment challenge; Tatel, J., dissents); Hutchins v. District of Columbia, 188 F.3d 531 (1999) (en banc) (joint concurring opinion of Garland and Wald, JJ.) (agreeing with Tatel and Rogers, JJ., that juvenile curfew is subject to intermediate constitutional scrutiny, but rejecting their conclusion that curfew is unconstitutional).

Civil Rights

Judge Garland has not been called upon to decide many civil-rights-related claims of great significance. It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.

On environmental law, Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups. This is in fact the area in which Judge Garland has been most willing to disagree with agency action. Several of the decisions gave rise to disagreements among the court's members. Perhaps the most notable ruling in this category is the "hapless toad" case famous from the confirmation of Chief Justice Roberts. In Rancho Viejo v. Norton, 323 F.3d 1062 (2003) (per Garland, J.), a panel upheld the government's application of the Endangered Species Act to the arroyo toad against a Commerce Clause challenge. John Roberts dissented from the denial of rehearing en banc in the case, although he did not argue that the case had been wrongly decided. 334 F.3d 1158 ("The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce among several States.'"). For other divided rulings, see American Bird Conservancy v. FCC, 516 F.3d 1027 (2008) (upholding environmental challenge to FCC action, over dissent by Kavanaugh, J., that claim was not ripe); American Corn Growers Ass'n v. EPA, 291 F.3d 1 (2002) (Garland, J., dissenting in part) (dissenting from majority opinion upholding industry challenge to part of EPA's anti-haze regulations); American Trucking Ass'n v. U.S. E.P.A., 195 F.3d 4 (1999) (Tatel, J., dissenting from the denial of rehearing en banc) (Garland, J., joins dissent from denial of rehearing en banc of invalidation of EPA regulations under non-delegation doctrine), rev'd, Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001); La. Envt'l Action Network v. U.S. E.P.A., 172 F.3d 65 (1999) (joining opinion of Williams, J., rejecting challenge to EPA action under RCRA; over dissent of Sentelle, J., that claim was not ripe).

Standing is an important doctrine in litigation, as it determines who "“ if anyone "“ can bring a federal court lawsuit. Generally speaking, the more conservative Justices take a narrower view of standing; the more liberal Justices more readily find standing.

Judge Garland's rulings in this area are not easily categorized. The cases depend very much on their facts. He has found standing for parties to bring civil rights claims. E.g., Act Now v. District of Columbia, 589 F.3d 433 (2009) (joining panel opinion holding that group had standing challenge to regulation of posters); Animal Legal Def. Fund v. Glickman, 154 F.3d 426 (1998) (en banc) (joining opinion of Wald, J., that plaintiff had standing to sue under Animal Welfare Act; over dissent of Silberman, Sentelle, Ginsburg, and Henderson, JJ.). In other context, the panels have found standing to be lacking. E.g., Judicial Watch v. U.S. Senate, 432 F.3d 359 (2005) (holding that challenge to application of Senate filibuster rule to judicial nomination failed for lack of standing); Wisconsin Public Power v. FERC, 493 F.3d 239 (2007) (energy cooperatives lack standing to challenge FERC methodology).

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.